Dismissed

Smr R Kamala D/O G Narayanagowda v. Sri Muniyappa S/O Late Thimmappa

Karnataka HC25 Nov 2020RSA/739/2009

Case brief

AI extract

What is this about?

High Court dismissed the second appeal filed by a plaintiff challenging a judgment that restricted her land claim. The court held that lawful possession to the extent claimed was not established due to discrepancies in land grant and sale records. The appeal is devoid of merits.

What did the court decide?

Second appeal dismissed; the judgment and decree of the lower appellate court are affirmed.

Smr R Kamala D/O G Narayanagowda Vs Sri Muniyappa S/O… — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.S.A.No.739 OF 2009

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BETWEEN:

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SMT.R KAMALA AGED ABOUT 44 YEARS D/O G NARAYANAGOWDA W/O R SUBBA REDDY

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R/O YALAVAHALLI VILLAGE KASABA HOBLI

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MULBAGAL

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KOLAR DISTRICT – 563 101.

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…APPELLANT

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(BY SRI Y R SADASHIVA REDDY, SENIOR COUNSEL FOR SRI RAHUL S REDDY, ADVOCATE))

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AND:

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SRI MUNIYAPPA

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AGED ABOUT 63 YEARS S/O LATE THIMMAPPA RETIRED TEACHER.

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SRI M MANJUNATH AGED ABOUT 36 YEARS S/O T MUNIYAPPA.

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THE RESPONDENTS 1 & 2 ARE RESIDENTS OF YALAVAHALLI VILLAGE, NOW RESIDENTS OF

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MUTHYALPET, MULBAGAL, TOWN KOLAR DISTRICT – 563 101.

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…RESPONDENTS

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(BY SRI BASAVARAJ S SAPPANNAVAR, ADVOCATE FOR R-1 AND R-2)

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THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD.21.04.2009, PASSED IN R.A.No.97/2008 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE, (SR.DN.), KOLAR. ITINERARY, MULBAGAL, PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 15.02.2008, PASSED IN OS.130/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, (JR.DN) AND JMFC, MULBAGAL.

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THIS RSA COMING ON FOR FURTHER DICTATION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment and

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decree dated 21-4-2009 passed in R.A.No.97/2008 by the learned III Additional Civil Judge (Sr.Dn), Kolar, wherein the appeal filed by the defendants in R.A.No.97/2008 came to be allowed in part consequently, the judgment and decree dated 15-02-2008 passed in O.S.No.130/2006 by the learned Principal Civil Judge (Jr.Dn) and JMFC,

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Mulbagal, is modified and the suit of the plaintiff is decreed only to an extent of 02 acres with the Northern boundary – property of defendants in a different survey number and Southern boundary property of the defendants measuring 2 acres in same survey number and thereafter 2 acres of Lalusabi in same survey number. Being aggrieved by the same, plaintiff/appellant has come before this Court in this regular second appeal under Section 100 CPC.

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In order to avoid confusion and overlapping,

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the parties are addressed in accordance with the ranks held by them before the trial Court.

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The plaintiff-R.Kamala has filed a suit for permanent injunction against the defendants viz. (1) T. Muniyappa S/o. Thimmappa and (2) T. Manjunatha, S/o Muniyappa, in respect of the suit schedule property bearing Survey No.46/1 measuring 10 acres

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30 guntas situated at Yeluvahalli village, Kasaba Hobli, Mulbagal taluk, Kolar District, out of which 06 acres 30 guntas including proportionate karab consisting of borewell with power, farm house, water tank and trees bounded on East by: properties of Venkataramana @ Chinnappaiah and Venkataramaiah @ Mekalappa, West by: Land of Ugini Venkatappa, North by- Land of T. Muniyappa and South by: land of T. Muniyappa (defendants).

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The substance of the case of the plaintiff is

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that, she is the absolute owner in possession and enjoyment of the suit property. Originally one G. Narayana Gowda was the owner of 10 acres 30 guntas of land in the said survey number about 40 years back and he was in actual possession and enjoyment of the said land, who acquired through his father as ancestral property. The grand father of the plaintiff by spending huge amount got improved the said land

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and cultivating different types of crops. In 1997-98 father of the plaintiff, Narayana Gowda and his brothers G.N.Nataraj and G.N. Rajendra got partitioned the family properties under partition deed dated 3.11.1997. In the said partition the suit schedule property was allotted to the share of the plaintiff and from the date of partition the plaintiff is in actual possession and enjoyment of the suit property and cultivating the suit land. She got dug a borewell in the property and obtained electric power connection and also constructed farm house. The defendants being the strangers without having any right, title or interest over the suit land unnecessarily interfering with the possession of plaintiff and attempting to disposes her from the suit property at the instigation of some inimical persons and on 10.11.2006 defendants tried to disturb the possession of the plaintiff over the suit property.

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Defendants filed their written statement

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denying the plaint averments and contending that survey No.46 of Yeluvahalli village is measuring 10 acres 30 guntas originally belonged to Government and out of which, 6 acres of land was granted by the government to the father of the plaintiff one G.Narayana Gowda under Dharkasth vide No.GDR26/51-52 and he obtained possession of the same and his name was mutated to the said extent in revenue records as per MR No.22/5/57-58. It is further contended that during his life time, father of

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the plaintiff sold 2 acres of land out of 6 acres in favour of 1^st defendant-T. Muniyappa under registered sale deed dated 25.2.1957 and also sold the remaining 2 acres in favour of one Lalusab son of Budan Sab under registered sale deed during the year 1955-56 and retained 2 acres of land which is a phoot karab situated in the said survey number. It is further

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contended that neither the plaintiff nor her father were in actual possession and enjoyment of 10.30 acres. It is contended that if at all any property remained and owned by the plaintiff is concerned as an allottee in the family partition, she got only 2 acres

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of land and there is no question of owning the land more than 2 acres.

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Basing on the pleadings, material

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assertions and the denials, the learned trial judge has framed the following issues:

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“1. Whether plaintiff proves that she is in actual possession and enjoyment of suit property as on the date of suit within the given boundaries?

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Whether plaintiff further proves that the defendants are interfering with her possession and enjoyment over suit property?

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Whether plaintiff is entitled for the relief as prayed for?

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What decree or order?”

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The trial judge was accommodated with the oral evidence of PW1- R. Kamala and PW2-Thippaiah and documentary evidence of Exhibits P1 to P18 on behalf of the plaintiff and oral evidence of DW1T.Muniyappa, DW2-Venkatamuniyappa and DW3Shivashankar and documentary evidence of Exs.D1 to D9 on behalf of defendants.

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Upon conclusion of the trial, learned trial

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judge decreed the suit of the plaintiff and restrained the defendants and their agents, servants, officials or anybody acting on their behalf by an order of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property without due process of law. Against which, defendants preferred an appeal in RA No. 97/2008 before the appellate court which came to be allowed in part on 21-4-2009 and judgment and decree passed in OS No.130/2006 came

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to be modified as mentioned above. Against which,

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plaintiff has preferred this regular second appeal.

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The appeal was admitted by this court on 20-10-2010 to consider the following substantial question of law:

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“Whether the lower appellate court was justified in modifying the judgment and decree of the trial court in the face of material evidence that is available?

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Learned Senior counsel Sri. Y.R. Sadashiva Reddy for Sri. Rahul S. Reddy, for appellant/plaintiff submits that the ownership and possession of the appellant/plaintiff is evidenced by authenticated records maintained by competent authorities and she is entitled for a decree as sought for. It is further submitted that right from the day one it is established that father of the plaintiff was entitled for 6 acres 30 guntas of land out of 10 acres 30 guntas. It was also

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submitted that 6 acres 30 guntas is retained by the plaintiff and the entire land in survey No.46/1 i.e. 10 acres 30 guntas was granted in favour of father of the plaintiff.

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Per contra, learned counsel Sri. Basavaraj S. Sappannavar for defendant Nos.1 and 2 submits that the total land available irrespective of land granted to the plaintiff’s father is only 6 acres 30 guntas and out of which, admittedly 2 acres of land is sold to Lalusab and another 2 acres to defendant No.1. Learned counsel for defendant Nos. 1 and 2 further submit that plaintiff has successfully manipulated the records and the same could be discovered only through a thorough probe in the matter.

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The main claim of the plaintiff is that, she

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got 6 acres 30 guntas of land in survey No.46 of Yeluvahalli village, Mulbagal Taluk, Kolar District and

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genisus of title as contended by her is that, totally there are 10 acres 30 guntas of land in survey No.46/1 which was owned by her father Narayana gowda and out of which, 02 acres each is stated to have been sold to defendant No.1 to one Lal Sab. Admittedly, the plaintiff’s claim is for a decree to the extent of 06 acres of 30 guntas.

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Per contra, the contentions of the

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defendants is that, the total extent of land available may be 10 acres 30 guntas but the total land granted to the plaintiff’s father is 6 acres 30 guntas and out of which, admittedly 2 acres each were sold to defendant No.1 and to one Lal Sab son of Anne sab.

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It is necessary to mention that the plaintiff

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is one R. Kamala daughter of G.Narayana gowda and wife of Shiva reddy. The defendants are: (1) T. Muniyappa and (2) T. Manjunatha son of Muniyappa

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(defendant No.1). Incidentally, suit is not against the others. On the other hand it is against grantee on one part and one of the grantee and his son on the other part and other grantee is not made as a party.

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The basic problem are both the parties have failed to furnish their grant certificate. If the property was granted as inam land or any other particular land it could have been produced as they belonged to successive group of documents registers will never be destroyed. On the other hand whether plaintiff or defendants they could have furnished the document stating as to how much of grant of land to Narayana gowda was made, whether entire 10 acres 30 guntas of land or what extent. Because insofar as whatever may be the extent of land, 04 acres have to be deducted as admittedly they are sold. However, on perusal of each and every documents the details are not forthcoming. Finally, this court had to verify

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from Ex.D4-index of land in respect of survey No.46 wherein, it is seen that in column meant for the nature of land, it is shown as ‘Sarkari i.e. Government’. Total extent is shown as ‘13 acres 09 guntas’. Karab land is stated as ‘2 acres 13 guntas’.

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It is necessary to mention karab lands are those lands which are not fit for cultivation which may contain rocks, stones or certain times used as roads and other amenities on which cultivation is not made. The balance extent is shown as ‘10 acres 30 guntas’ as Sarkari and beedu i.e. abandoned land. In Column No.17, the name of one Narayanagowda is mentioned and the extent is stated as 8 acres 17 guntas. Thus, both the plaintiff and the defendants are not cultivating the full extent and have not produced any proof before the court regarding the actual land granted. Defendants have been contending that out of total land of 6 acres 30 guntas in survey No.46 of

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Yaluvahalli village, Mulbagal Taluk, 2 guntas to defendant No.1 and 2 guntas to Lalu sab have been sold and balance available is 2 acres 30 guntas.

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Per contra, the plaintiff by mentioning various entries in the revenue records, states that total extent of land that was in possession of Narayana gowda and the same extent of land was granted. Absolutely, not even a single paper is furnished to show that 10 acres 30 guntas of land was granted to her father. However, it is stated that it is of the year 1951-52. In this connection a latitude may be given as the original may not be present, but good sense would prevail on parties to provide available alternative evidence as per the Rules of Evidence to show what they pleaded was and is a fact.

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After examining the documents which are produced by the defendants, x.D4- is the Index of

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Lands. Ex.D5 is the Record of Rights pertaining to

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Survey No.46 of Yeluvahalli village, Kasaba Hobli, Mulbagal Taluk. This record of rights was very much in force till the introduction of RTC. Earlier the documents that was necessary to locate the possession and ownership of rights are; Record of Rights, Index of Land, Akarband and Darkasth. Now that RTC itself contains various columns, mainly survey number; sub survey number; extent including Karab; Column No.9 pertains to ownership, Column No.10 is in respect of of nature of rights and other rights and kathedars etc.

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As the land pertains to a long back in terms

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of time, out of entire land in survey No.46, the land stated to have been granted to Narayana gowda, father of plaintiff-Kamala sharply is, 08 acres 17 guntas and defendants cannot have any grouse. But it is the document filed by the defendants. In column

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pertaining to “shara and note’, it is shown as 8 acre 17 guntas.

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The total extent of land stated in Ex.D4 is 13 acres 09 guntas and there is karab of 2 acres 13 guntas and it is shown as ‘sarkari babtu’. In respect of Narayanagowda, it is mentioned as ‘8 acres 17 guntas’ and it is shown as he is in possession. In Ex.D5, Janjaru Number is shown as 917, MR No.225/57-68 is shown in respect of Narayanagowda and the grant is shown as GDR:26/51-52 through dharkasth and acre is mentioned as 8 acres 17 guntas. In this connection, RTC extract filed by the plaintiff are Exs.P1 to P5. The reference mentioned in Ex.D6 tallies with 22.5/57-58 RR 917 and the land granted is shown as 8.7 guntas. With all that is said, mutation is effected for 6 acres of land in respect of plaintiff, whether it is 8.17 acres or 6 acres, claim of the plaintiff that her father-Narayanagowda was the

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owner of 10 acres 30 guntas cannot be accepted. But insofar as tallying that land as per Ex.D5 is concerned, the extent of land is 8 acres 17 guntas in its RR No.917 out of which 2 acres was sold to Lalu sab and another 2 acres to Muniswamy defendant No.1

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Muniswamy or Lalusab have not mortgaged the land and redeemed. Hence, the same is rebuted, totally reckoning the grant as 8 acres 17 guntas out of which 2.2 acres and 2 acres is deducted they tally with the remaining 4. 17 acres of land. In the total acres of 8 acres 17 guntas, 4 acres is deducted, remaining is 4.17 acres. But another RR is left out or forgotten. The contents of RR No.1160 is not observed either by the plaintiff or by the defendants. This refers to the grant of land as per the order of AC dated 29.3.1974 to one Venkataramaiah with a prohibition for sale for 15 years. This land is stated as 2 acre 13 guntas in which event, incidentally, all the grantees on

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records of right are in possession of survey No.46 whose extent is being claimed as 10 acres 30 guntas i.e. 10 36 guntas or 13.09 guntas and karab of 2.09 guntas.

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As per Ex.D4, the total extent of land is

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13.09 acres. Out of which, if 2 acres 13 guntas of karab is deducted, the remaining land would be 1036. Out of remaining 10 acres 36 guntas, the land granted if it is considered at 8.17 to the father of plaintiff Narayanagowda. Out of which he has sold 4 acres of land as stated above. If the remaining extent is taken as 6 acres to father of the plaintiff - Narayanagowda, 2.36 acres to Venkataramaiah as per RR No.1161, it becomes 8.36 guntas. However, Ex.D6 depicts the land granted in favour of Narayanagowda is 06 acres in survey No.46. It is a suit for permanent injunction wherein plaintiff is supposed to establish lawful possession.

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By virtue of detailed discussion made

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above, the possession or grant of 10.30 guntas is not sought by the plaintiff and even direction or identity is not sharply mentioned. To claim the relief of injunction, possession must be lawful. Apparently, the possession of the schedule property is not lawful to the extent claimed. Just basing on the revenue records, plaintiff cannot be considered to be the owner of the property. Ultimately, the result would be plaintiff was entitled whatever the land was granted to her father minus the lands sold by her father or by her. Regarding this, calculation is made at the end.

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In the whole set of circumstances, even the learned appellate judge though has partly allowed the appeal has not discussed the above points. In the context and circumstances, appeal is devoid of merits to the extent stated in the schedule and lawful possession to the extent of land as claimed by the

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plaintiff is not established. No doubt inference or rival claims regarding possession is absent. The substantial questions of law raised in this appeal are answered accordingly.

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For the reasons morefully stated above, the appeal is hereby dismissed.

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Sd/JUDGE

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HJ/tsn*

Smr R Kamala D/O G Narayanagowda v. Sri Muniyappa S/O Late Thimmappa

Case brief

What is this about?

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Smr R Kamala D/O G Narayanagowda v. Sri Muniyappa S/O Late Thimmappa

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